Category: 3-LawSometimeCommentary

Today's episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, by addressing another Trump-related question:  Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency?  We delve into the report and answer the question in a way that may surprise you. Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law.  Tillman's thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis. Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President.  Could Donald Trump nominate George W. Bush to be Secretary of State?  Find out! Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements.  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. Here's the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout's specific response to Tillman on the Emoluments Clause is here.
9. Tillman's reply to Teachout can be found here.
10. Teachout's final reply to Tillman can be found here.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download

On November 29, 2016, the Supreme Court heard oral argument in Moore v. Texas. In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was convicted and received a death sentence, which was affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that, under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia he was exempt from execution, because he was intellectually disabled. The state court granted habeas relief based on Moore’s Atkins argument, applying a definition of intellectual disability used by the American Association on Intellectual and Developmental Disabilities (AAIDD). The Court of Criminal Appeals of Texas reversed the grant, noting that the Texas legislature had not yet passed Atkins legislation and that the AAIDD definition of intellectual disability diverged from that previously adopted by Texas courts in the wake of Atkins--a 1992 definition used by AAIDD’s predecessor the American Association on Mental Retardation (AAMR), as well as the Texas Health and Safety Code. Moore, the Court of Criminal Appeals held, ultimately failed to establish by a preponderance of the evidence that he was intellectually disabled within the meaning of Atkins, as applied by Texas courts. -- The question before the U.S. Supreme Court is whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. -- To discuss the case, we have Kent S. Scheidegger who is Legal Director and General Counsel for the Criminal Justice Legal Foundation.

Today's episode is a mini-masterclass on Copyright.  We begin by answering a question from listener Sue Barnum who asks if a simple list can be copyrighted. After that, we move to the main discussion over the Copyright Act and the "fair use" defense, using as an illustration the recent story where CNN appropriated the graphic from the hit videogame Fallout 4 to illustrate a story about Russian hacking.  Did this violate copyright law?  Or was CNN's activity "fair use" of the game screen? Next, we answer a fun listener question from Damian Kumor about the portrayal of law in media.  What's Andrew's favorite obscure legal TV show?  Listen and find out! Finally, we end with Thomas Takes the Bar Exam question #6 about prenuptial agreements.  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 quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Here's the text of Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
2. This article from cnet explained CNN's use of the Fallout 4 graphic.
3. The Copyright Act of 1976 is codified at 17 U.S.C. § 101 et seq.
4. Learn about the incredibly low-rated cancelled TV show "Justice" at its IMDB page.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com

On December 7, 2016, the Supreme Court heard oral argument in Czyzewski v. Jevic Holding Corporation. Jevic Transportation, Inc., a trucking company headquartered in New Jersey, was purchased by a subsidiary of Sun Capital Partners in 2006. In 2008 Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code, at which that point it owed about $73 million to various creditors. Jevic’s former truck drivers then sued it for violating federal and state Worker Adjustment and Retraining Notification Acts, by failing to provide the requisite 60 days’ notice before a layoff. Separately, unsecured creditors filed a fraudulent conveyance action. In March 2012, representatives of all the major parties met to negotiate a settlement of the fraudulent conveyance suit. The representatives--except for the drivers’ representative--agreed to a settlement that would provide for payment of legal and administrative fees, a schedule for the payment of various creditors (though not the drivers), and ultimately a “structured dismissal” of the Chapter 11 bankruptcy. -- The drivers and US Trustee objected, arguing that the settlement would improperly distribute estate property to creditors with lower priority than the drivers, in violation of the Bankruptcy Code. The Bankruptcy Court rejected these objections and approved the proposed settlement. The U.S. District Court and then the U.S. Court of Appeals for the Third Circuit affirmed, holding that the Bankruptcy Court had not abused its discretion in approving a structured dismissal that did not adhere strictly to the Bankruptcy Code’s priority scheme. -- The question now before the U.S. Supreme Court is whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the statutory priority scheme. -- To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Today's episode begins with Breakin' Down the Law in which we discuss the recently-enacted "Frank R. Wolf International Religious Freedom Act," and whether the Act constitutes a significant legal protection for atheists. During our main segment, we are excited to have on Simon Tam, founder of the band "The Slants," for an extended interview that follows up on our discussion of Lee v. Tam from Episode 30.  Simon tells us about the history of the band, answers some tough legal questions, and also describes how he combines his music with social justice activism. After the interview, we turn to a listener comment from friend of the show Dr. Dave Hawkes, who helps answer a plausibility question we had from Law'd Awful Movies. Finally, we end with the answer to Thomas Takes the Bar Exam question #5 about the garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Learn all about The Slants and download authorized samples of their songs at www.theslants.com.
2. This is the press release issued by the American Humanist Association that also contains the full text of the Frank R. Wolf Act.
3. If you missed our initial coverage of The Slants on OA30, you should go back and listen to that episode!
4. And if you still haven't listened to our free episode of Law'd Awful Movies #1, you can download that here.
5. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com

In the lead-up to November’s presidential election, Donald Trump released a list of 21 potential Supreme Court nominees in what many saw as an effort to mollify conservatives who tend to worry about these sorts of things. Now, that list has reportedly been narrowed to eight. On this episode, we sit down with William Jay, a former clerk to Justice Antonin Scalia, to discuss Scalia’s possible successors.

We also speak with Jack Robinson, a lawyer for the special-needs student at the center of Endrew F. v Douglas City School District. The case is scheduled for argument at the Supreme Court next week, and Robinson explains why special-education advocates are watching the case so closely.

Transcripts of Amicus are available to Slate Plus members. Consider signing up today! Members get bonus segments, exclusive member-only podcasts, and more. Sign up for a free trial here.

Amicus is brought to you by Casper, an online retailer of premium mattresses for a fraction of the price. Get $50 toward any mattress purchase by going to Casper.com/amicus and using the promo code Amicus.

And by the Great Courses Plus, a video learning service that offers lectures on all kinds of topics. Get the first full month FREE when you sign up by going to TheGreatCoursesPlus.com/amicus.

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.

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

Today's episode begins with a question from Adrien Thuren about the minimum wage.  How come restaurants can seemingly pay wait staff less than minimum wage?  And if that's legal, why don't other industries don't start paying their employees less than minimum wage too?  Andrew tells us why or why not. For our main segment, we bring back guest Chris Kristofco from OA6.  In addition to being an ex-lawyer and current-day blogger about the Green Bay Packers, Chris is also a casino employee and former dealer.  He joins us to help break down the recent verdict in federal court in New Jersey requiring Phil Ivey to pay back $10.1 million to the Atlantic City Borgata casino. Next, "Breakin' Down the Law" returns with a segment that explains the difference between a "lawyer" and an "attorney."  Be honest -- you didn't know the answer, either, did you?? Finally, we end with Thomas Takes the Bar Exam, where Thomas tackles question #5 about garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. If you like football, and you love (or hate!) the Packers, you should listen to Chris Kristofco's excellent podcast, Titletown Sound Off.
2. If you missed Chris's first appearance way back on OA6, you should go back and listen to his predictions about the "pending NFL apocalypse," and you'll understand why we hold his feet to the fire on this return visit.
3. This is the Washington Post article explaining the Ivey verdict, based on the recent damage ruling.
4. And this is the full text of the October decision by the federal court on liability, which mostly went unnoticed even though it decided the key issue in the Borgata's favor.
5. Finally, this link contains a graphic representation of the purple Gemaco cards that were the subject of the suit as well as the "flaw" exploited by Ivey.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com

On November 2, 2016, the Supreme Court heard oral argument in Venezuela v. Helmerich & Payne International. Helmerich & Payne International Drilling Company owns a subsidiary that, in 2007, contracted to provide Venezuela's state-owned oil corporation the use of Helmerich’s drilling rigs. When unpaid invoices to the state-owned company surpassed $100 million in 2009, Helmerich refused to renew the contract and prepared to remove its equipment. Employees of the Venezuelan corporation, along with the Venezuelan National Guard, blockaded the equipment yards, and then-President Hugo Chavez issued a Decree of Expropriation. -- Helmerich sued in federal district court under the expropriation and commercial activity exceptions to the Foreign Sovereign Immunities Act. Venezuela moved to dismiss, and the district court granted the motion with respect to the expropriation claim but denied it with respect to the commercial activity claim. The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that because the expropriation claim was neither insubstantial nor frivolous, the district court should not have granted the motion to dismiss that claim--but should have dismissed the commercial activity claim because the subsidiary’s commercial activity had no “direct effect” in the United States. -- The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the Foreign Sovereign Immunities Act’s expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous. -- To discuss the case, we have Donald Earl “Trey” Childress III, who is Professor of Law at the Pepperdine University School of Law.

Welcome to the first Opening Arguments of 2017, and the first episode on our new two-episode-per-week schedule.  Just a reminder:  we will be releasing these episodes on Tuesdays and Fridays every week.  More on scheduling below. Today's episode begins with a far-fetched (but interesting!) hypothetical about what would happen if Donald Trump refused to take the Presidential Oath of Office.  We dig into the Constitution, the 20th Amendment, and the 25th Amendment and go down some fun rabbit trails. For our main segment, we return to the McDonald's "Hot Coffee" lawsuit we discussed in OA 29, and tackle some common questions about negligence raised by listeners. Next, "Breakin' Down the Law" returns with a segment that explains the difference between "legalizing" and "decriminalizing" ... stuff.  Yeah, "stuff." Finally, we end with Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep question #4 about trespass.  Going forward, TTTBE will always be an answer on Tuesday followed by a new question on Friday. Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). Show Notes & Links

1. If you missed OA29, you might want to go back and listen to find out all that's right and wrong about the McDonald's "Hot Coffee" lawsuit.
2. Also, we gave you a little holiday present by releasing LAM #1: The Firm to all of our listeners.  If you haven't listened already, we think you'll enjoy it.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com

Well, it's finally here:  the last Opening Arguments of 2016.  We're looking forward to 2017 (and our amazing two-episode-per-week schedule). We begin with some announcements about Law'd Awful Movies, and then turn to Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep questions. Then, we answer a listener question from Jim Sabatowski about the foreseeability of one's negligence by taking a trip back to law school and talking about the crazy, fireworks-on-a-train-exploding-scale madness that is Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). In our main segment, we tackle the confusion world of religious-themed holiday displays.  When is it okay to put a little baby Jesus on the courthouse steps?  We'll tell you insofar as the Supreme Court has told us, which... isn't always perfectly clear. In our "C" segment, we tackle yet another listener question; this one from Skeptic Sarah regarding the controversy over trademark registration for the all Asian-American band "The Slants" and their unique crowdfunding of their Supreme Court legal costs. Finally, we conclude with TTTBE #4.  Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). We'll see you in 2017... twice as often! Show Notes & Links

1. Here's a link to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which will help you answer TTTBE #3.
2. While we're at it, this is the full-text link to Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928), the case every law student knows.
3. Lemon v. Kurtzman, 403 U.S. 602 (1971), set forth the "Lemon test" that we talk about in the main segment.
4. Lynch v. Donnelly, 465 U.S. 668 (1984), was the 1984 case that said it was perfectly legitimate for a courthouse to display little baby Jesus in a manger.
5. But weirdly, Allegheny County v. ACLU, 492 U.S. 573 (1989), was the case from just five years later where the Supreme Court said no, courts couldn't just display little baby Jesus in a manger, but they could display a menorah, a Christmas tree, and a liberty plaque all together.
6. We defy you to explain the difference between Van Orden v. Perry, 545 U.S. 677 (2005), which upheld a Ten Commandments monument in Texas, and a decision handed down the exact same day, McCreary County v. ACLU, 545 U.S. 844 (2005), which struck down Ten Commandments posted on the walls out two courthouses in Kentucky.
7. Finally, this is a copy of the Slants' Supreme Court brief, which is reasonably entertaining for a legal brief.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com