Category: 3-LawSometimeCommentary

On February 22, 2017, the Supreme Court decided Life Technologies Corp. v. Promega Corp. Promega Corporation owned four patents for technology used in kits that can conduct genetic testing and was the exclusive licensee of a fifth patent. In 2010, Promega sued Life Technologies Corporation (LifeTech) for allegedly infringing on these patents. A jury found in favor of Promega but the district court nevertheless ruled for LifeTech, concluding that Promega had failed to present evidence sufficient to sustain the favorable jury verdict. The U.S. Court of Appeals for the Federal Circuit reversed that judgment, holding that the four Promega patents were ultimately invalid but agreeing that LifeTech had infringed the fifth patent and remanding to the district court for a determination of damages. In the course of its ruling, the Federal Circuit concluded that LifeTech’s supplying of a single, commodity component of a mulit-component invention had exposed LifeTech under federal law to damages liability on worldwide sales. -- The question before the Supreme Court was whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States exposes a manufacturer to liability for worldwide sales. -- By a vote of 7-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court held that the supply of a single component of a multicomponent invention for manufacture abroad does not give rise to liability under Section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of "all or a substantial portion of the components of a patented invention" for combination abroad. Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justices Thomas and Alito joined the majority opinion as to all but Part II-C. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Chief Justice Roberts was recused. -- To discuss the case, we have Howard J. Klein who is Attorney at Law at Klein, O’Neill & Singh, LLP.

In today's episode, we take a look at a recent claim being made by Sen. Al Franken and others that Attorney General Jeff Sessions perjured himself during his confirmation hearings. First, we begin with an examination of some legal issues in the news related to the Trump administration.  What does it mean that the ABA rated Supreme Court nominee Neil Gorsuch "well qualified," and does that mean Andrew is rethinking his opinions to the contrary in Episode 40 and Episode 49?  (No.)  We also delve into a discussion of the recent (non-)story regarding the release of Donald Trump's 2005 form 1040, as well as the recent decisions by U.S. District Courts in Hawaii and Maryland to issue temporary restraining orders blocking Trump's Revised Executive Order ("Muslim Ban"). In the main segment, we break down exactly what Sessions said and whether it meets the technical requirements for perjury. Next, we answer a question from patron Anthoni Fortier, who asks us what "cert" is and why Andrew keeps saying it. Finally, we end with the answer to Thomas Takes the Bar Exam question #15 about eyewitness identification.   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)! Recent Appearances: None.  Have us on your podcast, radio or TV show, or interview us! Show Notes & Links

1. This is the full text of the Hawaii decision enjoining the Revised Executive Order.
2. If you missed it, you'll want to check out OA Episode #43, in which we first discussed the 9th Circuit's Opinion that we revisit in this episode.
3. This is the full text of President Trump's revised Executive Order ("Muslim Ban").
4. And this is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which Andrew continues to think is the touchstone for whether Trump's Revised EO violates the First Amendment.
5. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute.
6. This is a timeline maintained by the Washington Post of Sessions's relevant conduct.
7. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions.
8. And here is an article in the National Review arguing to the contrary (largely on the grounds of 'intent').

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After a successful blockade of President Obama’s Supreme Court nominee, the GOP-led Senate will convene hearings this week on President Trump’s pick for the Court’s year-old vacancy. Considering all that has happened in the past year, how should Democrats handle the proceedings? On this week’s episode, we put that question to U.S. Senator Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee. 

We also sit down with veteran journalist Tom Rosenstiel to discuss his debut novel Shining City, a timely thriller about the inner-workings of a controversial Supreme Court nomination. Tom describes how his decades of political reporting informed the book, and reflects on some of the parallels between reality and fiction.

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In today's episode, we look at some legal terms that our patrons asked us to define.  In a twist, however, the guys switch chairs and Andrew asks the questions while Thomas tries to offer legal definitions.  How did that work out?   Listen and find out! We begin, however, with a listener question from Rachel Doty, who -- in keeping with this episode's theme -- asks us to define "Alford plea." Then, based on a suggestion from patron Marie Kent, we ask Thomas to define as many legal terms as he can in half an hour.  We think this would make an awesome game show, so if any of our listeners are TV producers, please give us a call. Next, we take a look at a listener who recommended a Facebook post from an immigration attorney, and the guys discuss the concept of "illegal" immigration. Finally, we end with a brand new Thomas Takes the Bar Exam question #15 that asks whether eyewitness testimony can be tainted by viewing the suspect in police custody.  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)! Recent Appearances: None.  Have us on your podcast, radio or TV show, or interview us! Show Notes & Links

1. Check out Marie's podcast, My Book of Mormon, by clicking here.
2. This is the Facebook post from immigration lawyer Lily Axelrod that we discuss during the show.
3. The one section of the US Code that Andrew found that uses the term "illegal alien" is 8 USC § 1365(b), which is very different from the colloquial use of the term.

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On November 8, 2016, the Supreme Court heard oral argument in Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v. City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues. -- The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation. -- There are two questions now before the Supreme Court: (1) whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies. -- To discuss the case, we have Thaya Brook Knight, who is Associate Director of Financial Regulation Studies at the Cato Institute.

In today's episode, we take a look at the recent Supreme Court decision to rescind its grant of certiorari in the 4th Circuit opinion of Grimm v. Gloucester County School District.  What happened, and what does this mean for transgender rights? First, we begin with an examination of the Trump administration's revised Executive Order (sometimes called the "Muslim Ban") restricting entry from now six Muslim-majority nations. As you may recall, we first addressed this issue back in Opening Arguments episode #43.  Does this revised order comply with the law and solve the problems outlined by the 9th Circuit, or is it still "obviously unconstitutional," as many news sources claim?  You'll know better than the New York Times soon enough! In our main segment, we look at Title IX's prohibition on "sex" discrimination and discuss whether it applies to discrimination on the basis of sexual orientation and gender identity while walking through the somewhat unique procedural history of the Grimm decision. Next, we evaluate whether former President Obama would be likely to prevail in a lawsuit for defamation against President Trump for the claim that Obama "wiretapped Trump Towers" prior to the election.  Is this Bat Boy?? Finally, we end with the answer to Thomas Takes the Bar Exam question #14 about IIED.  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)! Recent Appearances: Andrew was a guest on The Gaytheist Manifesto podcast, discussing the history of Title IX. Show Notes & Links

1. If you missed it, you'll want to check out OA Episode #43, in which we first discussed the 9th Circuit's Opinion that we revisit in this episode.
2. This is the full text of President Trump's revised Executive Order ("Muslim Ban").
3. According to this Guardian article, Hawaii has already sued to block the Revised EO.
4. This is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which is the touchstone for whether Trump's Revised EO violates the First Amendment.
5. Click here to read the (overconfident) New York Times article, "Don't Be Fooled" that asserts that the Revised EO is blatantly unconstitutional.
6. This is the text of 20 U.S.C. § 1681 ("Title IX").
7. This is the memorandum issued by the Obama DOJ providing guidance as to how to interpret Title IX.
8. And click here for the 4th Circuit's now-vacated opinion in Grimm v. Gloucester County School Board that we discuss during the show.

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In today's episode, we take a look at a rule first proposed by President Obama's Department of Labor in 2016 that would require financial advisers to abide by a "fiduciary" duty with their clients.  What does that mean?  Listen and find out! We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days. Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation.  He breaks down what the proposed rule means for you and the financial professionals you might hire. After the main segment, we turn to a petition that has been garnering significant attention on the Internet:  #ReVote2017.  What is it?  Is it really pending before the Supreme Court, and what does that mean? Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress.  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. To find out more about Ben Offit, CFP® and his services, you can visit his firm, Clear Path Advisory, or email Ben at ben@clearpathadvisory.com.
2. This is the announcement that the Fiduciary Rule has been postponed for 60 days.
3. You can also check out the text of the Fiduciary Rule itself.
4. This is the hilarious petition for writ of mandamus filed by the #ReVote 2017 petitioners.
5. And this is the docket entry for their petition, which is currently pending before the Court and will be denied on March 17, 2017, one week from today.

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In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement. First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response.... Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew's argument is that originalists do not belong on the Supreme Court.  Period. Finally, we end with the answer to Thomas Takes the Bar Exam question #13 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)! Recent Appearances: Andrew was a panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here. Show Notes & Links

1. Here are Andrew's two blog posts -- one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here.
2. This Huffington Post piece quotes Scalia's 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture.
3. Here's a link to the full text of the Federalist Papers.
4. Marbury v. Madison, 5 U.S. 137 (1803).
5. United States v. Carolene Products, 304 U.S. 144 (1938).
6. Scalia's dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law.
7. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both "cruel" and "unusual in the Constitutional sense."

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On Monday, the Department of Justice announced an abrupt about-face on voting rights, essentially walking away from a lawsuit against a harsh voter-ID law in Texas. We discuss the reversal and its implications with Janai Nelson of the NAACP Legal Defense and Educational Fund. She was one of the lawyers in the strange position of arguing the case in court this week, the day after the DOJ reversed course.

We also sit down with Jeffrey Fisher, who argued an important immigration-related case at the Supreme Court his week. Esquivel-Quintana v. Sessions asks whether a legal immigrant can be deported for something that counts as a serious crime in some states, but not others. It also previews a question likely to play a big role in Neil Gorsuch’s confirmation hearings: how much deference courts should give federal agencies when interpreting the meaning of laws.

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Today's episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook. First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos. Next, we tackle a recent ruling by the Washington Supreme Court applying that state's anti-discrimination law to a florist that decided she couldn't sell wedding flowers if the participants were gay.  Is this really the worst violation of individual freedom in the history of Western Civilization? Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic's Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel. Finally, we end with a brand new Thomas Takes the Bar Exam question #13 regarding 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)! Recent Appearances: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest panelist on an episode of The Thinking Atheist show, "Donald Trump's America." Show Notes & Links

1. This is the W.D. Texas order restraining the state from blocking Medicaid funding to Planned Parenthood.
2. Here is a link to Washington's anti-discrimination law.
3. Click here to read David French's hilariously over-the-top description of this case in the right-wing garbage mag, the National Review.
4. This is the 11th Circuit's ruling in Tobinick v. Novella.
5. Click here to check out Dr. Novella's podcast, the Skeptic's Guide to the Universe.

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