3-LawSometimeCommentary – Page 252

January 18, 2019

Opening Arguments - OA245: More on Barr and the Shutdown

Today's episode covers the William Barr confirmation hearings before the Senate Judiciary Committee to become the next Attorney General, as well as the ongoing legal battles regarding Trump’s shutdown of the government.

We begin with Barr, who’s proven to be a complex individual. How did he fare in his testimony before the Senate? Are there reasons for optimism? Is his notorious memorandum (which we covered in Episode 237) not really that bad? The answers… are all over the map, and will certainly surprise you.

Then, we discuss the ongoing shutdown, which looks to prove Andrew Wrong by not ending tomorrow. What are the legal implications? How are they going to be resolved? Is there any hope, either politically or legally? Listen and find out!

Finally, it's time for Thomas Takes The Bar Exam #110 which involves a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast. Give it a listen! And 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. Kamala Harris' statements regarding her opposition to Barr's nomination.2. Former Justice Department official of the George H.W. Bush administration Zachary Terwiliger and the speculation that he will once again be Barr's deputy. 3. Barr’s concerning views on executive power and reasons he has drawn so much criticism. 4. We discuss our past Episode OA 237: Lowering the Barr (Memo) 5. Jonathan Turley, GWU Law professor and gadfly, arguing about Barr 7. Jack Goldsmith, HLS professor, has written a response. “A Qualified Defense of the Barr Memo: Part I” 8. The 1995 OLC memo: Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges 9. 28 U.S.C. § 458: Relative of Justice or Judge Ineligible to Appointment10. Marist polling data on the Shutdown 11. NTEU v. Mulvaney 12. Barr's written testimony

Support us on Patreon at: patreon.com/law

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

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

January 17, 2019

SCOTUScast - Nutraceutical Corp. v. Lambert – Post-Argument SCOTUScast

On November 27, 2018, the Supreme Court heard argument in Nutraceutical Corp. v. Lambert, a case considering whether Federal Rule of Civil Procedure 23(f), which imposes a 14-day deadline for appealing from a grant or denial of class-action certification, can be equitably tolled.
Troy Lambert bought a dietary supplement that claimed to be an aphrodisiac containing sexual performance-enhancing herbs. He thereafter brought a class action in federal district court against the drug’s manufacturer, Nutraceutical Corp., alleging violations of U.S. Food and Drug Administration requirements and various California consumer protection statutes. The district court initially certified the class action, but following reassignment of the case to a new judge and discovery raising concerns about Lambert’s classwide damages model, Nutraceutical moved to decertify the class and the district court granted the motion on February 20, 2015.
On March 2, 10 days after the class had been decertified, Lambert informed the court that he intended to file a motion for reconsideration. The district court instructed him to file the motion within 10 days, which was 20 days in total from the original class desertification. Lambert moved for reconsideration on March 12 with further evidence to support his full refund damages model. The district court denied his motion in June. Fourteen days later, Lambert filed a petition under Federal Rule of Civil Procedure 23(f) for permission to appeal the district court’s orders granting decertification and denying reconsideration to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit conditionally granted the petition but instructed the parties to address whether it was timely.
Under Rule 23(f), a petition for permission to appeal must be filed with the circuit clerk “within 14 days” after the order “granting or denying class-action certification” was entered. Although Lambert’s petition came within 14 days of denial of his motion for reconsideration, it was filed months after the actual order granting decertification. The Ninth Circuit held that Lambert’s petition was nevertheless timely. Rule 23(f) is not jurisdictional, the court determined, and its deadline should equitably tolled by a timely motion for reconsideration such as Lambert’s. Reaching the merits, the Ninth Circuit then reversed and remanded, holding that the district court had abused its discretion in decertifying the class.
The U.S. Supreme Court, however, granted certiorari to address whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f)—and can excuse a party’s failure to file timely within the 14-day deadline, in conflict with the decisions of 7 other Circuit Courts of Appeals.
To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.

January 15, 2019

Opening Arguments - OA244: Clarence Thomas vs. Thurgood Marshall

Today's episode features a little more about Corey Robin, including the argument addressed on the show that criticisms of Clarence Thomas's competence are a racist echo of similar claims made against Thurgood Marshall. Find out why Andrew made the mistake he did in Episode 242, and also why Andrew still stands behind his answer to that question.

We begin with Robin, winding our way from his blog posts to the jurisprudence of two of Andrew's heroes, Laurence Tribe and Ronald Dworkin! Ultimately, you'll learn why Andrew continues to defend the proposition that attacks on Thomas's competence are not inherently racist.

After that, it's time for some behind-the-scenes news about Attorney General nominee William Barr just in time for his confirmation hearings. What company does he keep when it comes to interpreting the Founding Fathers? Listen and find out! (Hint: this isn't good.)

Finally, it's time for the answer to Thomas Takes The Bar Exam #108 regarding real property. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None! 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

We first discussed Robin in Episode 242 as part of a listener question. You can click here to read his Tweet criticizing us for engaging in "tribalism" and playing identity politics.
We discuss two Robin blog posts in depth: (a) "Everything is in the Hands of Heaven Except the Fear of Heaven", and (b) "The Scandal of Democracy"
It was, in fact, Elena Kagan who said "we're all textualists now" in 2015.
Click here to check out Tribe's 2008 book, The Invisible Constitution, which openly contests originalism (and directly engages Scalia in particular).
You should also check out the Ronald Dworkin speech that was turned into an article in the Fordham Law Review.
This is the 2001 Keith Whittington law review article that credits Robin with an assist. This is Whittington's page at the Federalist Society.
We engage with this tweet from Robin listing four supposed examples of intellectual laziness leveled against Thurgood Marshall.
Some Thurgood Marshall links: (a) his confirmation as reported by the New York Times; and (b) this lovely retrospective on Thomas's career penned by Juan Williams for the Washington Post.
Finally, you can read some more stuff on Clarence Thomas: (a) the 2014 rates of agreement among Supreme Court justices; and (b) this anecdote reported by attorney Matt Howell.
If you have HeinOnline, you can read the Mark Tushnet law review article in the Georgetown Law Review we discuss on the show. (Otherwise, you're stuck reading the first page only.)

Support us on Patreon at: patreon.com/law

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

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

January 11, 2019

Amicus With Dahlia Lithwick | Law, justice, and the courts - The Threat of National Emergency

What would a national emergency look like, and why hasn't Trump declared one yet? Dahlia Lithwick has answers and joins What Next, Slate's new daily news podcast, Plus: Was it weird that Ruth Bader Ginsburg wasn't at work this week?

Tell us what you think by leaving a review on Apple Podcasts or sending an email to whatnext@slate.com. Follow us on Instagram for updates on the show.

Podcast production by Mary Wilson and Jayson De Leon. Subscribe to What Next on Apple Podcasts, or wherever you listen.

Learn more about your ad choices. Visit megaphone.fm/adchoices

January 11, 2019

Amicus With Dahlia Lithwick | Law, justice, and the courts - The Threat of National Emergency

Tell us what you think by leaving a review on Apple Podcasts or sending an email to whatnext@slate.com. Follow us on Instagram for updates on the show.

Podcast production by Mary Wilson and Jayson De Leon. Subscribe to What Next on Apple Podcasts, or wherever you listen.

Hosted on Acast. See acast.com/privacy for more information.

January 11, 2019

Opening Arguments - OA243: Build That Wall!!

Today's episode tackles the mechanics of the shutdown and whether (and how) Donald Trump can build that wall despite widespread opposition.

We begin with an Andrew Was Wrong about the identity of Corey Robin and the incorporation doctrine. Enjoy a fun segue to Gitlow v. New York and why you should never repeat the trope that free speech doesn’t include the right to shout ‘fire’ in a crowded theater.

After that, it’s a deep dive into… what exactly is a “government shutdown,” anyway? What laws govern this? Why do some federal employees have to keep showing up? Isn’t that “involuntary servitude?” And can Trump declare a state of emergency or use “military eminent domain” to just build the wall anyway?

Then, it’s time for our weekly trip back to Yodel Mountain. In Rod We Trust… so why is he stepping down? And what’s the deal with that secret foreign-owned corporation that shut down an entire floor right before the holidays? Listen and find out!

Finally, it's time for Thomas Takes The Bar Exam #109, another 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!

Appearances

None! 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

Support us on Patreon at: patreon.com/law

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

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com[podcast src="https://html5-player.libsyn.com/embed/episode/id/8220119/height/360/theme/standard/thumbnail/yes/preload/no/direction/forward/" height="360" width="100%" placement="bottom" theme="standard"]

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January 8, 2019

Opening Arguments - OA242: Larry Klayman is Still Crazy After All These Years

Today's episode features a deep dive into the Bivens action, with a little help from everyone's favorite nutso conspiracy theorist lawyer, Larry Klayman -- and his newest client, Roger Stone sidekick Jerome Corsi. Find out what sorts of wacky shenanigans these guys have been up to, and why they think they've hit a $350 million jackpot. (Hint: they haven't.)

First, though, we begin with an insightful question from a listener regarding Clarence Thomas's jurisprudence and whether the frequent criticism of Justice Thomas as lazy is tinged with racism.

During the main segment, it's time for the breakdown of the latest Corsi lawsuit. It's a doozy -- it's everything you'd expect from someone who hired Larry Klayman (on purpose!) to be his lawyer.

Then, we answer a fun listener question about court filings, time zones, and the international date line. It's Around Opening Arguments In 80 Days!

After all that, it's time for the answer to Thomas Takes The Bar Exam #108 regarding civil procedure. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None! 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

This Vice article collects some of the strangest facts about Clarence Thomas, and this is the Jeff Jacoby op-ed that (factually) reports regarding Thurgood Marshall's declining years and -- in Andrew's opinion -- was misrepresented by Corey Robin.
Click here to read Corsi's lawsuit against Robert Mueller, and here to read Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the recent Supreme Court case limiting Bivens actions.

Support us on Patreon at: patreon.com/law

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

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

January 5, 2019

Amicus With Dahlia Lithwick | Law, justice, and the courts - Chief Justice John Roberts, a Rock, and a Hard Place

Dahlia Lithwick is joined by Joan Biskupic, CNN legal analyst and author of the upcoming book The Chief: The Life and Turbulent Times of Chief Justice John Roberts, to unpack John Roberts’ State of the Judiciary address, and to examine the state of the Chief Justice.

Learn more about your ad choices. Visit megaphone.fm/adchoices

January 5, 2019

Amicus With Dahlia Lithwick | Law, justice, and the courts - Chief Justice John Roberts, a Rock, and a Hard Place

Hosted on Acast. See acast.com/privacy for more information.

January 4, 2019

Opening Arguments - OA241: Is This The C-Hook That Could Send PG&E To Prison??

Today's episode takes a deep dive into the potential criminal liability for Pacific Gas & Electric (PG&E) in connection with the 2018 California Wildfires and the c-hook that just might be the linchpin to the whole thing. Are people going to prison? Listen and find out!

We begin by celebrating a brand-new holiday: Oversight Day, with the inauguration of Nancy Pelosi as Speaker of the House. We talk about funding, job postings, and how they all relate to Yodel Mountain.

After that it's time to get deep -- and we mean deep -- into PG&E's latest court filing, what it has to do with a 2010 explosion and a 2016 order, and what really caused the California Camp Fire. Along the way you'll learn about obstruction of justice (again!), the Natural Gas Pipeline Safety Act (really!), and how a corporation can have an "abandoned and malignant heart."

Then we end with an all new Thomas Takes The Bar Exam #108 about interstate car collectors-slash-thieves. As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry!

Appearances

None! 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