Category: 3-LawSometimeCommentary

Today's episode takes an in-depth look at gun control.  First, we answer two listener questions about originalism and the Second Amendment, including a provocative one about whether DC v. Heller deserves stare decisis respect under Andrew's model of jurisprudence.  The answer may surprise you! In the main segment, we examine HR 5087, the most recent gun control bill to be introduced in Congress.  What's in it?  What kinds of laws are Democrats looking to pass in light of the Parkland massacre? After that, we check in on the state of Pennsylvania's efforts to combat gerrymandering.  Could there actually be good news in this episode?  Listen and find out. Finally, we end with the answer to Thomas Takes the Bar Exam Question #69 about the firefighter's rule.  Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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. This episode builds on our two-part masterclass in the Second Amendment:  Episode 21 (Part 1) and Episode 2 (Part 2).
2. The two primary cases discussed are DC v. Heller and McDonald v. City of Chicago.
3. This is the text of HR 5087, the proposed gun control legislation, which amends 18 U.S.C. § 921 and 922.
4. We discussed the Parkland massacre in Episode 148.  You can read Chief Justice Thomas Saylor's statement here.

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On this week’s show, Dahlia Lithwick is joined by Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School, to unpack the oral arguments in NIFLA v Becerra, the latest case on the calendar that seems to be about one thing but is being argued under the all-encompassing umbrella of speech.

Dahlia also speaks with Walter Dellinger, former acting solicitor general, about why President Donald Trump can’t get a lawyer. Spoiler: It’s because he lies.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Sara Burningham.

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On this week’s show, Dahlia Lithwick is joined by Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School, to unpack the oral arguments in NIFLA v Becerra, the latest case on the calendar that seems to be about one thing but is being argued under the all-encompassing umbrella of speech.

Dahlia also speaks with Walter Dellinger, former acting solicitor general, about why President Donald Trump can’t get a lawyer. Spoiler: It’s because he lies.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Sara Burningham.

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In this rapid-response episode, Thomas and Andrew take a look at the things Andrew Was Right about over the past few weeks (yay!) as well as the things Andrew Was Wrong about (boo!).  It's Schrödinger's Andrew Day! In the pre-show segment, the guys go through the scenario for all of our Opening Arguments Community March Madness potential winners.  After that, it's time for Andrew Was Right! (TM).  We cover the Alex van der Zwaan sentencing memorandum and what it means for Yodel Mountain, as well as both the Amended Complaint and the Motion for Expedited Trial filed by our next Attorney General, Stormy Daniels.  You won't want to miss it! After that, it's time for Andrew Was Wrong (TM), in Andrew owns up to a few corrections about Watergate and revisits the emoluments lawsuit discussed way back in Episode 78.  Andrew was skeptical then; has he changed his mind? Finally, we end with an all-new TTTBE #69 that questions your knowledge of the "firefighter's rule" and whether it protects cops who get sideswiped.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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. This is the Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001.  You can click here to read the Christopher Miller story suggesting that "Person A" is Konstantin Kilimnik.
2. This is the Amended Complaint filed by Stormy Daniels; you can also read the Notice of Removal filed by EC and the Motion for Expedited Trial filed by Daniels.
3. Stormy's expedited trial motion is pursuant to 9 U.S.C. § 4.
4. This is the Washington Post article on Alexander Butterfield, which is definitely worth a read.
5. Here's the District Court's opinion in the emoluments litigation, which we first discussed back in Episode 78.
6. If you want to dive more into emoluments, you can read Mississippi v. Johnson, 71 U.S. 475 (1867), or listen to our two-parter with originalist Seth Barrett Tillman:  Episode 35 (Part 1) and Episode 36 (Part 2).

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On February 28, 2018, the Supreme Court heard argument in Minnesota Voters Alliance v. Mansky, a case involving a Minnesota statute that broadly bans all political apparel at the polling place.
Minnesota Statute § 211B.11 prohibits voters from wearing a “political badge, political button, or other political insignia… at or about the polling place on primary or election day.” State election officials indicated that “political” apparel included “issue oriented material designed to influence or impact voting” or “material promoting a group with recognizable political views.” If a person arrived at a polling place wearing a political item, the election judges were instructed to ask the individual to remove or cover the item. If the individual refused to comply he or she would still be allowed to vote, but the person’s name and address would be recorded for a potential misdemeanor prosecution.
An association of various Minnesota political groups known as Election Integrity Watch (EIW) sued the Secretary of State and county election officials in federal district court, alleging that the statute was invalid--both facially and as-applied--under the First Amendment, and violated the Fourteenth Amendment’s Equal Protection Clause due to selective enforcement. Although the district court initially dismissed all claims, the U.S. Court of Appeals for the Eighth Circuit reversed that judgment with respect to EIW’s as-applied First Amendment claim, and remanded the case. On remand, the district court again ruled against EIW, granting summary judgment in favor of the defendants. On a second appeal, the Eighth Circuit affirmed the district court’s judgment--but the United States Supreme Court thereafter granted certiorari to determine whether Minnesota Statute Section 211B.11 is facially overbroad under the First Amendment.
To discuss the case, we have Timothy Sandefur, Vice President for Litigation at the Goldwater Institute.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Today's episode takes our time machine back to 1972, as Richard Nixon's Committee to Re-Elect the President ("CREEP") planned the break-in to the Watergate Hotel Complex that set in motion the criminal conduct that led to the only time in our nation's history when a President has resigned in disgrace.  Exactly what happened?  In this episode, we talk about the "Saturday Night Massacre," and what it means today. First, though, we examine the unintended consequences of the Republican tax bill crammed through the Senate in the waning moments of 2017.  Might the bill actually prevent the major sports franchises, such as Major League Baseball, from trading players??  Listen and find out! After the main segment, Andrew tackles a listener question regarding the "Guarantee Clause" of the Constitution.  What is it, and why should you care?  Listen and find out! Finally, we end with the answer to Thomas Takes the Bar Exam Question #67 about breach of contract.  Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  Have us on your show! Show Notes & Links

1. The provision of the tax code discussed in the "A" segment is 26 U.S.C. § 1031, and you can click here to read about the previous IRS opinions regarding major sports franchises and like-kind exchanges.  You can also check out the New York Times article that first revealed this uncertainty.
2. The primary cases we discussed regarding Watergate were Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) and United States v. Nixon, 418 U.S. 683 (1974).
3. The two cases analyzed in the "C" segment were Luther v. Borden, 48 U.S. 1 (1849) and dicta from New York v. United States, 505 U.S. 144 (1992).

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openarguments@gmail.com  

In this rapid-response episode, Thomas and Andrew discuss the scandal regarding Cambridge Analytica.  Is there a legal angle?  Have crimes been committed?  Listen and find out! In the pre-show segment, Andrew helps out our reporters by giving theme the question they need to be asking regarding Stormy Daniels, which is:  "Now that you’ve acknowledged that you’re DD, and you’ve sued Stormy Daniels for $20 million, can you tell us what claims you had against Ms. Daniels that you believe you settled in that agreement?  What could you have sued her for?"  You're welcome. That segues into the "A" segment, where the guys discuss the differences (and one strange overlap) between the recent lawsuit filed by Karen McDougal and the top-of-Yodel-Mountain Stormy Daniels lawsuit. After the main segment, we tackle a listener question regarding the difference between textualism and originalism, inspired by our most recent episode, Episode 157. Finally, we end with an all-new TTTBE #68 that requires some math to figure out the appropriate measure of damages for breach of contract.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  Have us on your show! Show Notes & Links

1. This is the National Review article that actually gets Stormy's story right.
2. Here's Mike Murphy's article expressing skepticism of CA's claims.
3. This is the Price v. Facebook class action civil lawsuit, arising out of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.  And here's the statement from NY Attorney General Eric Schneiderman.
4. If you wanted to set up a SuperPAC, Andrew's old pals at Covington & Burling have drafted a simple how-to guide for you.
5. Finally, here's a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism.

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On March 19, 2018, the Supreme Court heard argument in Sveen v. Melin, a case involving the relationship between Minnesota’s revocation-upon-divorce statute and the U.S. Constitution’s “Contracts clause,” which declares that no state may pass a law “impairing the Obligation of Contracts.”
In 2002, Minnesota amended its probate code to incorporate life insurance beneficiary designations into its revocation-upon-divorce statute. Mark Sveen purchased a life insurance policy in 1997, months before marrying Kaye Melin, who Sveen designated as the primary beneficiary on the policy. His two adult children, Ashley and Antone Sveen, were listed as contingent beneficiaries. Melin and Sveen divorced in 2007, but Sveen never removed Melin as the primary beneficiary of his life insurance policy.
Both Melin and Sveen’s adult children sought to claim the insurance proceeds. In light of Minnesota’s extension of the revocation-upon-divorce statute to life insurance policies, Sveen’s insurance company sought clarification in federal district court regarding whether Melin should still be considered the primary beneficiary. The district court granted summary judgment in favor of the Sveens, applying the revocation-upon-divorce statute retroactively to remove Melin as a beneficiary.
The U.S. Court of Appeals for the Eight Circuit reversed that judgment, however, reasoning that retroactive application of the statute in these circumstances would violate the Contracts clause. The Supreme Court thereafter granted certiorari to consider that core issue: whether the application of a revocation-upon-divorce statute to a contract signed before the statute’s enactment violates the contracts clause.
To discuss the case, we have Prof. James Ely, Professor of Law Emeritus at Vanderbilt University Law School.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

On February 27, 2018, the Supreme Court heard argument in Lozman v. City of Riviera Beach, Florida, a case involving a First Amendment retaliatory arrest claim.
Fane Lozman moved to Riviera Beach, Florida in 2006, where he lived on a floating home in the Riviera Beach Marina. Shorty after moving to Riviera Beach, Lozman learned of the City’s new redevelopment plan for the Marina, which, by using eminent domain, sought to revitalize the waterfront. Lozman, who opposed this plan, became known as an “outspoken critic.” During the finalization of the redevelopment plan, the state legislature passed a bill prohibiting the use of eminent domain for private development; however, in order to push through the plan, the Riviera Beach City Council held a special emergency meeting the day before the Governor signed the bill into law. In response, Lozman filed suit against the City in June 2006.
At a City Council regular public session in November 2006, Lozman was granted permission to speak during the “non-agenda” public comments portion of the meeting. Lozman’s comments were interrupted by a member of the City Council, who, after a quick interchange with Lozman, called a city police officer to dismiss Lozman from the podium. Lozman refused to be seated without finishing his comments, and the police officer warned him that he would be arrested if he did not comply. Lozman continued his comments, was arrested, and was charged with disorderly conduct and resisting arrest without violence. These charges were later dismissed.
In 2008, Lozman filed suit in district court against the City of Riviera Beach, arguing that his arrest had constituted unlawful retaliation by the City because of Lozman’s earlier opposition to the redevelopment plan. A jury found in favor of the City, however, and the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. The jury’s determination that the arrest had been supported by probable cause, the court concluded, defeated Lozman’s First Amendment retaliatory arrest claim as a matter of law. The federal circuit courts of appeals have divided on that issue, however, and the Supreme Court subsequently granted certiorari to address whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.
To discuss the case, we have Lisa Soronen, Executive Director of the State & Local Legal Center.

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia's acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof). In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones.  Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more.  Does Andrew change his mind?   Does Thomas?  Listen and find out! After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to "send a message."  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  Have us on your show! Show Notes & Links

1. You can listen to our (ahem) original episode on originalism, Episode 49.
2. Please also check out David Michael's new podcast, The Quorum!
3. Here’s a link to the full text of the Federalist Papers.
4. United States v. Carolene Products, 304 U.S. 144 (1938).
5. 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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