Category: 3-LawSometimeCommentary

Today's episode takes a look at HR 620.  What does it mean, and why does Congress want to make changes to one of the most successful, bipartisan, and beloved pieces of legislation in the past 30 years? First, though, the guys update  break down a recent decision from the Eastern District of New York also enjoining Trump's rescission of DACA.  Why did a second court block Trump's order?  Listen and find out! During the main segment, Andrew walks us through the history of the Americans with Disabilities Act and what restrictions HR 620 would impose on would-be plaintiffs.  Is it as bad as people are saying?  (Hint:  yes.) After that,  we answer a somewhat off-the-wall question from listener Mark Lunn that's a follow-up to Episode 147 with Lucien Greaves. Finally, we end with the answer to Thomas Takes the Bar Exam Question #64 about dog law, accidental trespass, and... well, you'll just have to listen.  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. Don't forget to show up for the monthly Q&A this Wednesday, February 28th, at 8:30 pm Eastern / 5:30 pm Pacific.  You can submit your questions here.
2. We covered the first court decision enjoining Trump's order on DACA in Episode 140.  You can read the second (New York) decision here.
3. The relevant provision of the ADA modified by HR 620 is 42 U.S.C. § 12188.

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On January 10, 2018, the Supreme Court heard argument in Husted v. A. Philip Randolph Institute, a case involving a dispute over the process for removing inactive voters from voter registration lists in the State of Ohio.
The National Voters Regulation Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) require that States maintain their lists of registered voters in such a way as to ensure proper removal of individuals no longer eligible to vote for certain reasons, such as a felony conviction. In addition, the State of Ohio has undertaken steps to ensure inactive registrants are still living at the address at which they are registered to vote. The principal way Ohio does this is by comparing names and addresses contained in its own voter registration database to the National Change of Address (NCOA) database generated from U.S. Postal Service data. Ohio’s Secretary of State then provides each county’s Board of Elections (BOE) with a list of registered voters who appear to have moved. The BOE thereafter sends each of these voters a postage-prepaid forwardable notice on which the voter must indicate whether he or she still lives at the address of registration. Recipients of this notice are subsequently removed from the voter registration list if they (1) do not respond to the confirmation notice or update their registration, and, (2) do not subsequently vote during a period of four consecutive years that includes two federal elections.
Ohio has also implemented a “Supplemental Process,” however. Under this process each BOE compiles a list of voters who have not engaged in “voter activity” for the past two years (meaning filing a change of address form with a state agency, casting an absentee ballot, voting in person on election day, or casting a provisional ballot). The BOE sends these registrants a confirmation notice similar to the one used in the NCOA process. Voters sent a confirmation notice are removed from the rolls if they subsequently fail to vote for four years and fail either to respond to the confirmation notice or re-register.
The A. Philip Randolph Institute and other affiliates sued Ohio Secretary of State Jon Husted in federal district court, alleging that Ohio’s Supplemental Process violated the NVRA and HAVA, and seeking an injunction reinstating voters removed from the state registry under the Supplemental Process. Although the Secretary amended the confirmation notice format during the course of the litigation, neither the original version nor the revised version attempts to inform recipients who have moved how properly to register to vote in their new district. The district court denied relief and gave judgment in favor of the Secretary. The U.S. Court of Appeals for the Sixth Circuit, however, reversed that judgment and remanded the case for further proceedings. The Supreme Court then granted certiorari to address whether Ohio’s Supplemental Process runs afoul of NVRA and HAVA.
To discuss the case, we have Michael Morley, Assistant Professor of Law at Barry University School of Law.

In this fast-breaking episode, Thomas and Andrew preview a significant labor case scheduled for oral argument before the Supreme Court this coming Monday, Janus v. AFSCME.  You'll know all about it before the news breaks! In the initial segment, "Andrew Was Wrong" returns with listener criticism over our repetition of the common media statement that Parkland was the "18th" school shooting of 2018. After that, Andrew walks us through Janus v. AFSCME and its implications on the future of unions. Next, the guys revisit ex-Google employee James Damore and discuss the significance of a recent memorandum issued by the National Labor Relations Board regarding his termination.  Is The Most Important Lawsuit In The History of Western Civilization still on track?  Listen and find out. Finally, we end with an all-new TTTBE #64 about criminal dog law.  You won't want to miss it!  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 Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, "Philosophers in Space."  You'll be glad you did! Show Notes & Links

1. Janus is, in fact, the angry god of doorways.
2. We covered the Parkland school shooting in Episode 148.
3. This is the Washington Post article critical of the "Everytown for Gun Safety" statistics, and here is a link to Everytown's actual database of incidents.  Judge for yourself!
4. Here is Abood v. Detroit Board of Education, 431 U.S. 209 (1977), discussed extensively during the show.
5. You can read the NLRB memo advising dismissal here.
6. We covered the (still-pending) James Damore lawsuit on Episode 111 of Serious Inquiries Only.

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On January 17, 2018, the Supreme Court heard oral argument in Encino Motorcars v. Navarro, a case on its second trip to the high court regarding a dispute over the application of the Fair Labor Standard Act’s overtime-pay requirements for service advisors at car dealerships.
Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to “protect all covered workers from substandard wages and oppressive working hours,” and it requires overtime pay for employees covered under the Act who work more than 40 hours in a given week. The FLSA exempts from this requirement, however, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers….”
Hector Navarro and other service advisors filed suit against their employer Encino Motorcars, alleging that it violated the FLSA by failing to pay them overtime wages. Encino countered that as service advisors, Navarro and the other plaintiffs fell within the FLSA exemption. The district court ruled in favor of Encino, but the U.S. Court of Appeals for the Ninth Circuit reversed, relying upon a 2011 regulation issued by the Department of Labor (DOL) and indicating that service advisors were not covered by the exemption. The Supreme Court, however, thereafter vacated the judgment of the Ninth Circuit. Determining that the regulation at issue was procedurally defective, the Court remanded the case for the Ninth Circuit to construe the FLSA exemption without “placing controlling weight” on the DOL regulation.
On remand, the Ninth Circuit, assuming without deciding that the DOL regulation was entitled to no weight, held that the FLSA exemption, on its own terms, did not encompass service advisors. As a result, the court indicated, plaintiffs could proceed against Encino on their claims for overtime. Encino petitioned for certiorari, however, and the Supreme Court agreed to take up the case a second time to consider again whether service advisors at car dealerships are exempt from the Fair Labor Standards Act's overtime-pay requirements.
To discuss the case, we have Tammy McCutchen, Principal at Littler Mendelson, PC.
This podcast is cosponsored with the Labor & Employment Law Practice Group.

Today's emergency episode breaks down the indictments issued in the Mueller probe on Friday, focusing on the shadowy, Putin-funded Internet Research Agency.  What does this mean in terms of Yodel Mountain?  Listen and find out! After that, we have a lengthy interview with friend of the show Bryce Blankenagel of the Naked Mormonism podcast.  Bryce comes on the show to break down the Rob Porter scandal, an innocuous-sounding bill before the Utah state legislature, and the puppet-mastery of the Mormon Church of all things political in that state. After that, we end with the answer to Thomas Takes the Bar Exam Question #63, another very difficult question, this one about hearsay.  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 Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, "Philosophers in Space."  You'll be glad you did! Also, Andrew was just a guest on Episode 6 of the Wayward Willis Podcast -- give it a listen. Show Notes & Links

1. The case referenced in the A segment is United States v. Yousef, 327 F.3d 56 (2003).
2. This is the text of Utah HB 330, and this is the article Bryce referenced during the show.

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In this week’s episode, Professor Leah Litman joins Dahlia Lithwick to tune into Justice Ruth Bader Ginsburg’s comments on #MeToo and due process. And for a full background check on the sexy-sounding Janus v. AFSCME case, which potentially poses an existential threat to public sector unions, Dahlia is joined by Professor Catherine Fisk of the U.C. Berkeley School of Law, who wrote about the case for SCOTUSblog.

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 week’s episode, Professor Leah Litman joins Dahlia Lithwick to tune into Justice Ruth Bader Ginsburg’s comments on #MeToo and due process. And for a full background check on the sexy-sounding Janus v. AFSCME case, which potentially poses an existential threat to public sector unions, Dahlia is joined by Professor Catherine Fisk of the U.C. Berkeley School of Law, who wrote about the case for SCOTUSblog.

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

In this emotional episode, Thomas and Andrew begin by discussing the recent school shooting at Marjory Stoneman Douglas HS in Parkland, Florida. After that, the guys break down the recent settlement between Waymo (the Google-backed automotive company) and Uber regarding allegations of stolen trade secrets in the nascent self-driving car industry. Then, Andrew updates us on the state of gerrymandering litigation in Pennsylvania and before the Supreme Court. Finally, we end with an all-new Thomas Takes the Bar Exam #63 about hearsay.  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 just a guest on Episode 6 of the Wayward Willis Podcast -- give it a listen! Show Notes & Links

1. We discussed a modest proposal for gun control in Episode 110., and the 1994 Omnibus Crime Bill in Episode 95.
2. Andrew quoted from this CNN article when referencing teacher Melissa Falkowski; from this Washington Post article about Colt's decision to suspend sales of the AR-15 in 1989, and from this blog post on "The Firearm Blog" by the AR-15's designer, Jim Sullivan.
3. California's Roberti-Roos Assault Weapons Control Act of 1989 can be found at California Penal Code § 30150 et seq.
4. This is the Waymo v. Uber lawsuit, and here is the link where you can view the Powerpoint used during the REAL OPENING STATEMENTS by Waymo's attorneys.
5. Finally, we last discussed gerrymandering in Pennsylvania and elsewhere way back in Episode 146.  If you're curious, this is what MD-6 looks like today, and this is what it looked like before the 2011 redistricting.

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Today's episode features a full-length interview with the co-founder of The Satanic Temple, Lucien Greaves.   This episode is part of a two-part crossover with Episode 119 of Serious Inquiries Only.  In this episode, we talk about TST's lawsuit challenging Missouri's abortion law and other issues at the forefront of church-state separation. After that, we end with the answer to Thomas (and Lucien!) Take the Bar Exam Question #62, a fiendishly difficult question about the Statute of Frauds.  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. Don't forget to check out Episode 119 of Serious Inquiries Only featuring Jex Blackmore!
2. We first discussed TST's lawsuit challenging the Missouri abortion law way back in Episode 7 and Episode 8!
3.  You can follow the link to the January 23, 2018 oral arguments in Doe v. Greitens by clicking here.
4. Doe's brief can be found here, and this is the State of Missouri's response.

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In this "lightning round" episode, Andrew tackles more than the typical three stories we cover on the show.  How much more??  Listen and find out! Potential topics include:  the budget showdown and sequestration, the recent Supreme Court rulings on gerrymandering, the Nunes memo, the Federal Reserve, stock market, and Wells Fargo fraud, and ... possibly even more?? Finally, we end with an all-new Thomas (and Lucien!) Take the Bar Exam #62 involving the statute of frauds.  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 read all 652 pages of the proposed budget deal here.
2. The Pennsylvania redistricting case is League of Women Voters v. Pennsylvania, 159 MM 2017.
3. We discussed the North Carolina gerrymandering decision in Episode 138; the Supreme Court's brief order staying that decision is here.
4. And, of course, you'll want to review the 2008 Powerpoint and 2010 "Snidely  Whiplash" REDMAP Powerpoint.
5. This is the full text of the Nunes memo.  We discussed FISA courts in depth in Episode 106, which covered 50 U.S.C. § 1805, the authorizing legislation.
6. Finally, you can read the Federal Reserve's cease-and-desist against Wells Fargo; the enabling legislation is 12 U.S.C. § 1818 et seq.

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