Category: 3-LawSometimeCommentary

Today's episode features Natalie Newell of the documentary "Science Moms" discussing GMO labeling and science awareness. First, we begin with an "Andrew Was Wrong" segment that updates some previous stories, including good news from the Jane Doe v. Wright decision discussed in Episode 117 and some clarification regarding the Manafort indictment from Episode 118. After that, Natalie Newell joins us for a lengthy discussion on GMOs in light of legislation passed in 2016 requiring uniform national labeling. Finally, we end with an all-new Thomas Takes the Bar Exam Question #49.  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 a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links

1. Here is the press release regarding Jane Doe's abortion.
2. The GMO labeling law we discuss is the "National Bioengineered Food Disclosure Standard Act of 2016," 7 U.S.C. § 1639 et seq.
3. And you can (and should!) check out "Science Moms" by clicking here and listen to Natalie's podcast, The Science Enthusiast.

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Today's episode takes a look at the recent decision in Doe v. Trump in which a federal judge issued a preliminary injunction blocking the majority of President Trump's ban on trans servicemembers in the armed forces. First, though, we begin with a discussion of Brady v. Maryland, 373 U.S. 83 (1963) and the requirement that prosecutors turn over exculpatory evidence to criminal defendants. In the "C" segment, we discuss two articles surrounding Trump's legal strategy in light of last week's indictments. Finally, we end with the answer to Thomas Takes the Bar Exam Question #48 about co-conspirators, confessions, and hearsay.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links

1. The two cases discussed in the "A" segment were Brady v. Maryland, 373 U.S. 83 (1963) and U.S. v. Bagley, 473 U.S. 667 (1985).
2. You can read the full text of Judge Kollar-Kotelly's decision in Doe v. Trump by clicking here.
3. The two articles discussed in the "C" segment were this article from the Daily Beast and this article from The Hill.

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Today's rapid-response episode tackles -- of course -- the indictment of former Donald Trump campaign manager Paul Manafort and his protege, Rick Gates, as well as the guilty plea entered by Trump campaign official George Papadopoulos.  What does it all mean?  Listen to a special full-length episode and find out! After our full discussion, we end with a timely new Thomas Takes the Bar Exam Question #48 about co-conspirator confessions.  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 a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links

1. You can (and should) read the Papadopoulos statement of offense.
2. Papadopoulos has pled guilty to providing a false statement to a government official, 18 U.S.C. § 1001.
3. After that, you can read the Manafort and Gates indictment by clicking here.
4. Manafort and Gates are collectively charged with 12 crimes, including conspiracy to commit an offense against or to defraud the United States, 18 U.S.C. § 371; conspiracy to launder money,18 U.S.C. § 1956; seven counts of record-keeping violations under 31 U.S.C. § 5314; two separate violations of the Foreign Agent Registration Act, 22 U.S.C. § 612 et seq.; and, of course, providing false statements to a government official, 18 U.S.C. § 1001.

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On October 11, 2017, the Supreme Court heard argument in Jesner v. Arab Bank, PLC, a case regarding the validity of suits against corporate entities under the Alien Tort Statute.
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., (“Kiobel I”), which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability.
The U.S. Supreme Court affirmed the Second Circuit’s judgment in Kiobel (“Kiobel II”) but for a different reason: the failure to rebut a presumption against extraterritorial application of the ATS to actions that took place in the territory of a sovereign other than the United States. The district court in Jesner acknowledged this, but concluded that nothing in the Supreme Court’s decision actually contravened the Second Circuit’s original rationale regarding corporate liability, which therefore remained the law applicable to district courts within the Second Circuit. On appeal, the Second Circuit affirmed the district court, agreeing that Kiobel II did not overrule Kiobel I on the issue of corporate liability under the ATS.
Other federal circuit courts of appeals, however, have read Kiobel II differently with respect to the possibility of corporate liability, creating a split with the Second Circuit--and the Supreme Court has now granted certiorari to address whether the Alien Tort Statute categorically forecloses corporate liability.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.

Today's episode takes a look at a tragic case currently unfolding of a pregnant young woman being detained for being in this country illegally and the Trump administration's efforts to deny her the right to an abortion. We begin with a quick procedural update on the 9th Circuit's ruling on EO-2 before taking a deep dive into the nuts and bolts behind Zarda v. Altitude Express, which we first discussed back in Episode 91.  Thanks to some great questions from our listeners, Andrew and Thomas get into the civil procedure weeds with concepts like "claim-splitting" and res judiciata. In the main segment, the guys break down Jane Doe v. Wright, and discuss whether the government can prohibit an minor alien in this country outside of legal status from seeking an abortion. Next, Andrew and Thomas discuss a prominent tweet within the skeptical community and whether it is fair to characterize the statement itself as "sexual harassment." Finally, we end with the answer to Thomas Takes the Bar Exam Question #47 about landlord responsibility and immunity.  Don't forget to following 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 recent news regarding the 9th Circuit was reported by Bloomberg News and other outlets.
2. We first discussed Zarda v. Altitude Express in Episode 91.
3. New York's Human Rights Law can be found in the New York Consolidated Laws, Art. 15, § 290 et seq.
4. We took you through the current status of abortion in our detailed two-part discussion of Planned Parenthood v. Casey in Episode 27 and Episode 28.
5. You can read Jane Doe's complaint, as well as the en banc decision of the Court of Appeals for the D.C. Circuit in Jane Doe v. Wright.
6. The regulations implementing sexual harrassment under Title VII can be found at 29 C.F.R. § 1604.11.

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On October 11, 2017, the Supreme Court heard argument in National Association of Manufacturers v. Department of Defense, a case regarding the proper jurisdiction of federal circuit courts of appeals with respect to rules issued under the Clean Water Act.
In 2015, the U.S. Army Corps of Engineers and U.S. Environmental Agency (the “Agencies”) issued a final rule intended to clarify the definition of “waters of the United States” as used in the Clean Water Act (the “Clean Water Rule”). Petitioner associations and companies filed suit in various federal district and appellate courts to challenge the Clean Water Rule, claiming that the definitional changes improperly expanded the Agencies’ regulatory jurisdiction and dramatically altered the existing balance of federal-state collaboration on water resource concerns. Many of the suits were eventually consolidated before the U.S. Court of Appeals for the Sixth Circuit. The Clean Water Rule, Petitioners contended, is inconsistent with Supreme Court precedent and was improperly adopted without satisfying the requirements of the Administrative Procedure Act. Petitioner National Association of Manufacturers (“NAM”), which had brought its challenge in federal district court, then intervened in the Sixth Circuit litigation and moved to dismiss for lack of jurisdiction, arguing that judicial review must first take place in district court and that this case did not fall within the judicial review provisions of the Clean Water Act. The Sixth Circuit ultimately rejected this argument and concluded that it could exercise jurisdiction over requests for review of the Clean Water Rule under 33 U.S.C. Sec. 1369(b)(1)(F). That provision provides for exclusive jurisdiction in the federal circuit courts of appeals to review an action “issuing or denying any permit under section 1342, [the National Pollutant Discharge Elimination System]....”
The question presently before the U.S. Supreme Court is whether the Sixth Circuit erred in holding that it had jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to assess a Clean Water Rule that did not actually “issu[e] or den[y] any permit,” but rather defined the waters that fall within the scope of the Clean Water Act.
To discuss the case, we have Jonathan Adler, Director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.

Dahlia Lithwick speaks with Representative Jamie Raskin about the Republican remedy for Trump's unfitness for office: The 25th Amendment. Plus, she speaks with ProPublica's Ryan Gabrielson about his recent reporting which revealed that the high court tends to make staggering errors of fact in opinions. 

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Dahlia Lithwick speaks with Representative Jamie Raskin about the Republican remedy for Trump's unfitness for office: The 25th Amendment. Plus, she speaks with ProPublica's Ryan Gabrielson about his recent reporting which revealed that the high court tends to make staggering errors of fact in opinions. 

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Today's rapid-response episode tackles the recent news that Hillary Clinton's campaign and/or the DNC paid for the "Russian dossier" on Donald Trump.  What does that mean in terms of U.S. election law?  Listen and find out! We begin with a quick news update on various lawsuits against poker pro Phil Ivey, a story we covered way back in Episode 32 with guest Chris Kristofco. Next, we take a quick look at New York's use of the Uniform Bar Exam (UBE) and what this might mean for Thomas's Second-Chance Law Firm! In our main segment, we talk to election law expert Beth Kingsley on the "Trump Dossier" and the role played by the Hillary Clinton campaign and the DNC.  Is it time to "Lock Her Up?" After that, we examine the recent Senate vote against the Consumer Financial Protection Bureau's rule regarding class action lawsuits.  What does it mean, and did Andrew contradict himself with his earlier support for arbitration?  Listen and find out! Finally, we end with a new Thomas Takes the Bar Exam Question #47 about landlord immunity.  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 the fascinating tale of Phil Ivey's edge-sorting scheme by checking out Episode 32, and if you would like to hear more from Chris Kristofco, check out his podcast, "Titletown Sound Off."
2. This is the Yahoo News article about Ivey.
3. Here are the New York bar exam results, courtesy of Above the Law.
4. We first discussed Donald Trump, Jr.'s meeting with the Russians back in Episode 86, and then again in Episode 93 when we answered Sage's question.
5. The relevant election law statute is 52 U.S.C. § 30121.
6. Here is the CFPB rule that was just voted down by the Senate.

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Today's episode features former NFL punter, social justice advocate, and game designer Chris Kluwe, who sued his former NFL team for wrongful termination after he alleged that they cut him for standing up for marriage equality. Kluwe brings his unique behind-the-scenes knowledge to help us understand Colin Kaepernick's recently-filed grievance against the NFL, and gives us some bold predictions as to what's going to happen next.  Even if you're not a football fan, we think you'll love this conversation. After that, Andrew and Thomas break down a recent story circulating about former FBI Director James Comey and (of course) Hillary Clinton's "damned emails," which we first discussed way back in Episode 13.  (If you haven't listened to that episode, you probably should; it's really good!) Finally, we end with the answer to Thomas Takes the Bar Exam Question #46 as to whether pre-nuptial agreements must be in writing.  Don't forget to following 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. You too can read Colin Kaepernick's arbitration demand; we archived a copy of it here.
2. We first discussed Hillary Clinton's "damned emails" and the Comey investigation back in Episode 13.
3. Here is a link to the (almost entirely redacted) email chain regarding Comey's statement.
4. Finally, you should absolutely check out Kluwe's new card game, Twilight of the Gods, by clicking here.

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